One long-standing hallmark of Western conservative thought is the emphasis on the rule of law. Earlier generations of conservatives understood that, without such constraints, liberty would be imperiled and a free society would ultimately descend into tyranny. As Lord Acton observed, "Power tends to corrupt, and absolute power corrupts absolutely." Even during the 20th century, most conservatives were wary of unfettered pragmatism, and they viewed with horror the assertion of Vladimir Lenin and his communist followers that the end justifies the means. To the contrary, conservatives stressed that even when the goals were worthy, the use of unconstitutional, illegal, or immoral means was not justified.
In recent years, though, a troubling number of prominent figures on the political right have seemingly abandoned that standard, especially with respect to national-security issues. Instead, their sole guiding principle appears to be whether an initiative "works"—in the sense of producing the desired result. Whether that initiative violates fundamental constitutional or moral standards is seen as irrelevant and, frankly, a somewhat quaint consideration. By embracing ruthless pragmatism, these individuals come perilously close to being conservative Leninists.
Signs of such attitudes began to surface during the Cold War, and they were among the reasons why I left Young Americans for Freedom, the Young Republicans, and other conservative organizations. Increasingly, I heard the argument that, because America confronted a dangerous, ruthless, and evil adversary, our country could not be squeamish about the tactics used to thwart that threat. The policies U.S. officials pursued reflected a willingness to cut moral and legal corners to achieve the broader objective. The cynical military coups that the Eisenhower administration executed to topple democratic, albeit left-leaning, governments in Iran and Guatemala were international manifestations of this attitude. So, too, were lucrative military- and economic-aid programs to some of the most odious dictators on the planet, including Mobutu Sese Seko in Zaire, the shah of Iran, Nicaragua's Anastasio Somoza, and Ferdinand Marcos in the Philippines. Domestically, most conservatives seemed comfortable with government programs that spied on, and even harassed, critics of U.S. foreign policy.
That tendency to disregard legal and moral considerations has resurfaced and become even more virulent in conservative political and policy circles regarding counterterrorism measures since the September 11 attacks. In a series of memos to the President (the most infamous one being the August 1, 2002, "torture memo") conservative legal scholars John Yoo and Jay Bybee, at the time lawyers for the Department of Justice, made sweeping assertions about presidential authority to wage the "War on Terror." Among other arguments, Yoo and Bybee contended that "enhanced interrogation techniques" (a term that was little more than a euphemism for torture) were not barred by the U.S. Constitution, treaties the United States had signed, or any federal statute. Indeed, any congressional act that purported to limit the president's power in that area would be invalid.
More broadly, Yoo and Bybee adopted a breathtaking interpretation of presidential power in the arena of national security. Among other steps, they argued, the president could order the indefinite detention of any terrorist suspect—even a U.S. citizen arrested on U.S. soil—without a trial or even an evidentiary hearing.
How far John Yoo was willing to go in placing the president beyond any legal restraints became apparent in a December 2005 debate with a critic of the Bush administration's policies. When asked whether a president could order that the testicles of a suspected terrorist's child be crushed in order to pressure the father, Yoo astonishingly declined to condemn such an outrageous idea as legally and morally offensive. Instead he replied, "I think it depends on why the President thinks he needs to do that."
The Bush administration sought to put most of the recommendations of the Yoo-Bybee memos into practice. This is troubling on several counts. The Geneva Conventions prohibit not only torture but, in equally categorical terms, the use of "violence," "cruel treatment," or even "humiliating or degrading treatment" of detainees. Moreover, the War Crimes Act of 1996 made any grave breach of these prohibitions a felony. A number of interrogation techniques that the Bush administration approved, most notably waterboarding and extended sleep deprivation, were rather clear violations. The August 2002 memo even approved any CIA enhanced-interrogation technique that did not lead to organ failure or other severe, permanent physical damage.
David Addington, the general counsel in Vice President Dick Cheney's office, chafed at legal restrictions because in his view they would hobble efforts "to quickly [sic] obtain information from captured terrorists." Addington strongly endorsed the most radical claim in the August 2002 memo: that the president could authorize any interrogation method. Treaties, and even U.S. laws, forbidding "any person" to commit torture simply did "not apply" to the commander in chief, he argued.
In a May 2009 speech to the American Enterprise Institute, Cheney himself embraced such reasoning and vehemently defended the record of the Bush administration on pragmatic grounds: "In the years after 9/11, our government also understood that the safety of the country required collecting information known only to the worst of the terrorists." And in some cases, "that information could be gained only through tough interrogations." The intelligence officers "who questioned the terrorists can be proud of their work and proud of the results, because they prevented the violent death of thousands, if not hundreds of thousands, of innocent people." A bold claim, and one that former CIA director George Tenet had made previously: "I know that this program has saved lives. I know we've disrupted plots."
Cheney's dismissive attitude toward criticism of the policies on moral or legal grounds was especially unsettling. He recounted that one high-level Al Qaeda operative had said that he would talk as soon as he got to the United States and saw his lawyer. "But like many critics of interrogations," Cheney sneered, "he clearly misunderstood the business at hand. American personnel were not there to commence an elaborate legal proceeding, but to extract information from him before al-Qaeda could strike again and kill more of our people."
Other conservative figures echoed Cheney's condemnation of moves by the Obama administration to investigate whether unlawful abuses of detainees had taken place. House Republican leader John Boehner stated,
Our intelligence professionals have done a marvelous job keeping us safe. Faced with threats never before seen in our history, they have provided our troops with crucial information they need to fight our enemies abroad and protect our citizens at home. They deserve our gratitude...
Senate Republican leader Mitch McConnell was even more succinct: "I think it's important to remember, from 9/11 until the end of the Bush administration, not another single attack on the U.S. homeland. We were obviously doing something right."
Conservative pundits likewise lined up behind the proposition that it was unpatriotic even to advocate an investigation into whether government employees may have violated the law and committed acts of torture. Syndicated columnist Cal Thomas argued that the Bush administration's approach clearly had been successful, and he scorned Obama and others who worried that the tactics may have violated fundamental American values: "History will show that this approach protected our 'values' against those who would destroy them." The American Enterprise Institute's Reuel Marc Gerecht, though, made the most blatant Leninist defense. Writing in the Wall Street Journal, he stated,
Regardless of whether one believes CIA-inflicted waterboarding, sleep deprivation or severe psychological coercion (suggesting that harm could come to a family member of a taciturn al Qaeda detainee) constitute torture, such actions may have produced an intelligence bonanza and saved thousands of lives.
A striking feature of the defense that Cheney and his ideological allies have put forth is the avoidance of any serious discussion of whether the measures were illegal and/or immoral. Moreover, there is almost no willingness to address the point that at least some of the accused terrorists held at the Guantanamo Bay detention center and overseas facilities were innocent. Indeed, the term "accused terrorists" is never used. Proponents of enhanced-interrogation techniques invariably describe detainees as "captured terrorists" or simply "terrorists," as though the guilt of every single individual were beyond dispute.
Yet that notion defies credulity. There were several thousand people captured in Afghanistan, Iraq, and other locations. The Guantanamo facility held more than 775 detainees at the peak, and many more were held at Abu Ghraib and various CIA "black sites" overseas. Even assuming that CIA, FBI, and military personnel were scrupulous in trying to establish the guilt of individuals they captured, it is a certainty that some innocent people were caught up in the sweep. Indeed, given the bitter clan and tribal rivalries in Afghanistan, and the equally bitter Sunni-Shiite-Kurdish animosity in Iraq, it is highly probable that a sizable number of parties were accused by personal or ideological enemies, even when they had no connection to Al Qaeda.
It is difficult enough to accept the reality that U.S. personnel committed acts of torture, even against bona fide terrorists. But it is appalling that some of the people deprived of their liberty for months, and in some cases years, without trial—and subjected to torture—were in fact innocent. Yet approximately 50 percent of the inmates held by the U.S. military at Abu Ghraib were ultimately released without being prosecuted. A number of detainees at Guantanamo have likewise been quietly released. In both cases, the implicit admission is that they were not terrorists.
The "ends justifies the means" defense of the Bush administration's War on Terror tactics proves faulty even on its own terms. Contrary to the assertion by proponents of enhanced-interrogation techniques, there is serious doubt about their effectiveness. In his AEI speech, as on so many other occasions, Cheney failed to provide specifics about terrorist attacks that were foiled or to offer any evidence that those techniques saved thousands, much less hundreds of thousands, of lives.
Moreover, several former officials with experience in interrogation have disputed the claims that significant amounts of valuable information were obtained. Even the validity of information provided by high-level Al Qaeda operative Khalid Sheikh Mohammed, the veritable poster boy for the effectiveness of torture, is now uncertain. As reported by Vanity Fair, one former senior CIA official, who read all of the interrogation reports on Khalid Sheikh Mohammed, concluded that "90 percent of it was f–king bullsh-t." Former CIA officer Robert Baer makes the obvious point that "you can get anyone to confess to anything if the torture is bad enough."
Even worse, there are indications that such harsh tactics have made the overall terrorist threat worse. Matthew Alexander, the senior interrogator in Iraq on a task force charged with finding Abu Musab al-Zarqawi, made a most sobering observation in The Daily Beast:
I listened time and time again to captured foreign fighters cite the torture at Abu Ghraib and Guantanamo as their main reason for coming to Iraq to fight. Consider that 90 percent of the suicide bombers in Iraq are those foreign fighters, and you can easily conclude that we have lost hundreds, if not thousands of American lives because of our policy of torture and abuse.
Fortunately, not all conservatives have succumbed to the temptation to disregard moral and legal constraints on the grounds that terrorism poses a serious threat to the well-being of the American people. Testifying before the House Committee on Armed Services, former State Department official William H. Taft IV, grandson of Robert A. Taft, the leading conservative political figure of his era, provided a reminder of the importance of adhering to principle in troubling times: "It is when we are enraged—when our blood boils—that we most need to adhere to the rule of law as we have established it, not change it to suit our convenience." That is an appropriate rebuke to Dick Cheney, John Yoo, and other conservatives who seem all too willing to embrace Leninist tactics.